7.  The facts of the case, as submitted by the parties, may be summarised as follows.
8.  The applicant was born in New Zealand and at all material times was domiciled there. In 1966 he came to the United Kingdom to attend flying courses and at the same time engaged in other occupations of an engineering or building contractor variety, trading under the name “King Enterprises Engineering & Hardware Co”. The applicant met Miss J. and between April 1973 and October 1991 they purchased properties together.
9.  From the 1970s onwards, the applicant's tax returns were incomplete and late, in some cases by several years. From February 1982, the Inland Revenue began investigating a number of guesthouse businesses in London which were associated with the applicant and/or his partner Miss J. of which no mention had been made in the applicant's tax returns.
10.  In December 1985 the General Commissioners of taxes served two notices on the applicant requiring him to provide details of the acquisition of one of the guesthouses and to produce his business records. At a meeting on 21 November 1986, the applicant states that he was informed that the Revenue would be seeking penalties as part of any settlement.
11.  From this time the applicant was involved in frequent discussions and correspondence with the Revenue about his affairs. The Government stated that the Revenue held some 38 meetings with the applicant and/or his accountant between September 1986 and July 1991.
12.  In June 1987 the Revenue requested a statement of assets and liabilities from the applicant. The applicant states that he objected to disclosing all his assets since due to his non-domicile status his overseas assets were of no relevance. When he had not provided the statement by November 1987, the applicant was interviewed by the Inspector of taxes and on 21 November 1987 the “Hansard statement” was read to him. The statement, revised by the Chancellor of the Exchequer from time to time, sets out the practice of the Inland Revenue in cases in which criminal proceedings may be contemplated and outlines the factors taken into account by the Revenue when deciding whether to prosecute.
13.  In April 1988 the General Commissioners served a notice requiring the applicant to give details of all transfers of property and cash and of his bank accounts. The notices included a warning about the financial penalty which could be imposed for non-compliance.
14.  On 18 January 1989 the applicant signed a “Statement of Personal Assets and Liabilities and Business Interests” as at 1 September 1986. He states that this was after the Special Commissioners had refused to require him to disclose his overseas assets. The same month, the Revenue issued tax assessments against the applicant for the tax years 1972/3 to 1986/7. The assessments were for income tax on guesthouse profits and bank interest which had not been declared by the applicant in his tax returns. The total claimed was in excess of 620,000 pounds sterling (GBP). For the tax years more than six years prior to the assessments being made, the Revenue could only raise assessments which were to make good a loss of tax due to the neglect or wilful default of the applicant.
15.  The applicant appealed against the assessments. Initial hearings during early 1989 before the General Commissioners were adjourned on the application of the applicant or Miss J. On 24 August 1989, at the Revenue's application, the appeals were transferred to the Special Commissioners of Taxes. A hearing of one week was scheduled for November 1990. On the date set for the hearing of his appeal, the applicant applied for judicial review of the refusal of the Special Commissioners to hold a preliminary hearing at his request. The appeal was adjourned as a result. After the refusal of permission to apply for judicial review, the appeals were relisted.
16.  The appeals were heard over eighteen days between May and September 1991. The Commissioners initially indicated that they were not prepared to sit one day a week for the convenience of the applicant, but after the Revenue had opened the case it was decided that, exceptionally, the hearings should be arranged to ensure that the applicant and Miss J. were able to attend. The applicant's main submissions were that he had no beneficial interest in three of the guesthouses in respect of which assessments had been made and that certain funds used to purchase property had been a loan from his father.
17.  On 18 November 1991 the Special Commissioners issued their written decision. Some of the assessments were reduced to nil or discharged, but the appeals were dismissed in substance, the Commissioners finding that (for those years for which it was necessary) the purpose of the assessments had been to make good a loss of tax which was due to the applicant's wilful default or neglect. They found that the applicant had traded as a guesthouse proprietor and had derived profits from the trade. The applicant's evidence was described as “irregular in quality” and his claim that he was in partnership with other members of the family, including his infant children was found to be “a complete sham”. The revised assessments amounted to approximately GBP 120,000.
18.  In or about the end of December 1991 the applicant applied for the Special Commissioners to state a case by way of appeal to the High Court against the 1991 Commissioners' decision, on the basis that they had erred in law, there being no evidence on which they could reach their determinations. The Special Commissioners drafted the case for the High Court in July 1992 and the applicant lodged his appeal on 17 August 1992. The appeal was heard and dismissed on 26 November 1993. The Court of Appeal dismissed the applicant's further appeal in October 1995.
19.  Meanwhile, in December 1991 the General Commissioners issued a determination under section 88 of the Taxes Management Act 1970 that interest was payable on the assessments from specified dates on which the tax ought to have been paid, to the date of payment. The applicant appealed against the determination.
20.  On 17 October 1994 the Revenue issued penalty determinations, assessed at 80% of the tax lost (the maximum penalty then being 100% of the lost tax, plus GBP 50). The penalties amounted to over GBP 50,000. The applicant appealed against the penalty determinations.
21.  In April 1995 the General Commissioners agreed that the interest and penalty appeals should be transferred to the Special Commissioners. At about the same time, the Revenue discovered the existence of a further property, Roundwood Lodge, which had been purchased in 1983 and which was in the applicant's name. The Revenue took the view that the property had been purchased with funds from the profits of the applicant's business and the funds were therefore taxable. In April 1996 further assessments to income tax were therefore issued on guesthouse profits for the years from 1977/78 to 1985/86. The applicant appealed against the further assessments and the matter was later transferred to the Special Commissioners to be consolidated with other appeals.
22.  Meanwhile, on March 1996 the applicant suffered a stroke which he states affected his memory and his ability to cope with pressure. In August 1996 he wrote to the Revenue to ask that the “matters in hand” be adjourned to enable him to concentrate on his recovery. He appeared before the General Commissioners on 24 October 1996 when his request for further time for preparation of various matters was granted.
23.  Meanwhile, despite reminders from the Inland Revenue on 6 June 1996 and 14 November 1996, the clerk to the General Commissioners did not write to the clerk of the Special Commissioners requesting a transfer until 3 March 1997. Despite further reminders in March, April and May 1997, he failed also to request a transfer of appeals against further assessments made in April 1996. The General Commissioners asked the clerk to request a transfer of these appeals on 24 October 1996.
24.  On 6 March 1997 the Special Commissioners agreed to accept jurisdiction and issued requests for information about the status of various appeals. In September 1997 the appeals were consolidated.
25.  In February 1998 there was a preliminary hearing of the appeals against, (i) the December 1991 determination of interest, (ii) the 1994 penalty determination and (iii) the further assessments raised in 1996. The substantive hearing began in May 1998 and was heard over seventeen days between then and April 1999. The applicant represented himself. During the hearing he applied for a copy of the notes made by the 1991 Commissioners. When the application was refused he sought permission to judicially review the decision, which was also refused.
26.  On 23 March 2000 the Special Commissioners dismissed the appeals. They held, inter alia, that they were bound by the factual findings of the 1991 Commissioners on the issue of neglect/wilful default for the years in respect of which such findings had been required. For the later years, in respect of which no determinations had been made by the 1991 Commissioners, they found wilful default and neglect on the part of the applicant (which was necessary to uphold the penalty determination). They also found that the capital statement he had prepared in 1991 was not truthful. As the amount of tax due was correctly determined by the 1991 Commissioners, the interest determination was also correct. The 80% penalties were appropriate. They allowed his appeal against the further (1996) assessments in part, by allowing some reduction in the amount claimed, but found that the applicant had been the owner of Roundwood Lodge and had purchased it with his own funds.
27.  In May 2001 Mr Justice Jacob dismissed the appeals against the findings of the 2000 Commissioners. As regarded the applicant's complaints raised about the procedures under Article 6, he found that the system of imposition of penalties for fraudulent or negligent delivery of incorrect returns or statements was “criminal” for the purposes of the Convention. He noted that the system was plainly punitive and deterrent, and the potential fine was very substantial and dependent on the culpability of the taxpayer, rather than being an administrative matter. The amount of the fine imposed also depended on the degree of culpability as mitigation, essentially a criminal matter, was more where the taxpayer was less culpable. The judge agreed with the applicant that the proceedings began in 1987 when the Hansard warning was given and considered whether the length of the proceedings was unreasonable. The judge noted that the applicant made no complaint of delay up to the 1991 decision and that some of the subsequent delay had been caused by or contributed to by the applicant, inter alia, in the way in which 16 hearing days were spread over nearly a year and due to problems arising from his illness. However, he observed that nothing happened for a two year period when the case was referred to the Special Commissioners, notwithstanding reminders from the Inland Revenue. In conclusion the judge said:
“The decision of the 1991 Commissioners was released on 18 November 1991. Mr King waited some 5 weeks before asking for a case stated (appeal by way of cases stated was the procedure then). There was then an 8 month delay before that was produced (delay not of Mr King's making). The appeal was launched on 17 August 1992. Judgment was given on 14 January 1994. The Revenue delayed making a penalty determination until 17 October 1994. Whilst it is understandable, and at least not unreasonable, for the Revenue to wait until the hearing of the first appeal, it makes no sense for them to have waited some 9 months thereafter. The possibility of a determination was simply left hanging. Meanwhile the parties' attention was focused on other things, namely Mr King's further appeal to the Court of Appeal and, more significantly so far as Mr King's contribution to delay was concerned, the Revenue's discovery of the purchase in 1983 by Mr King of the substantial property, Roundwood Lodge. This led to further assessments and appeals therefrom which, it was decided fairly early on, should be heard with the interest and penalty appeals. ...
It seems that but for Mr King's concealment of Roundwood Lodge, the two other appeals would have been heard earlier than 1998. It is not possible to be precise as to how much delay was caused by the introduction of this factor into the case, but it is far from insignificant. Naturally it prolonged the hearing itself, but on top of that I think a fair estimate of its effect is that it delayed the penalty and interest appeals for about three years.
... The result of all this is that there was delay through no fault of Mr King of, say, five years from the date of the 1991 decision. Is that too much? Marginally, but only just, I think not. He was not thereby prejudiced. ... He merely had to pay the penalty later. But for the complication of Roundwood Lodge, however, I think the time to determination of the penalty appeals would have been inconsistent with Article 6 (1). In future cases it is highly desirable that such appeals (and penalty determinations) are put on a fast track. So far as I can see they were treated in the same way as other determinations and appeals, but it should be appreciated that more is at stake in the case of penalties. Serious consideration should be given to penalty determination being made earlier - in appropriate cases along with the assessments giving rise to the penalties. ... I see no reason why the 1991 Commissioners could not have dealt with a penalty determination appeal if such a determination had been made at the same time as the 1989 determinations or shortly thereafter.”
28.  The judge found in addition that the case was a serious one in which penalties were appropriate and the figure of 80% was not too high. So far as the further assessments were concerned, the reasoning of the Commissioners was detailed and convincing. The applicant had given misleading information to the Revenue and to the 1991 Commissioners and the further assessments had been to make good a loss of tax attributable to the applicant's wilful default or neglect. There was no error of law and no reason to overturn the decision.
29.  The applicant applied for permission to appeal to the Court of Appeal. Permission was refused on paper in July 2001 and at a hearing on 3 October 2001.
30.  On the question of delay, the Court of Appeal said,
“The delays which occurred in relation to the penalty determination must be seen in the context of what has plainly been an extended campaign by the applicant in disputing his liabilities to the Revenue and in deferring the date on which those liabilities have to be satisfied. Moreover, I find ... the greatest difficulty in seeing how the applicant could be prejudiced simply by the fact that the penalty might have been imposed earlier.”
31.  The court was not persuaded that an appeal on that basis would have any prospect of success. Although by the time of the appeal a medical report had been provided to the effect that the applicant's memory had been significantly impaired as a result of his stroke, the author was unable to date the onset of the memory loss or its duration. The report did not take the applicant's case as to prejudice any further.